THE GAY ANGLE: LIE BACK AND THINK OF ENGLAND

[Yeah, that was Eve's fault.]

A constitutional amendment to prevent gay marriage is a red herring, much like the amendments to overturn Roe v. Wade or allow prayer in school that have been bandied about for twenty years or more. Amending the Constitution is, by design, incredibly difficult--a 2/3 vote in both Houses of Congress and then approval by the legislatures of 3/4 of the states being the most common method. I guarantee you that more than one third of the Senate and 1/4 of the state legislatures would oppose any such amendment.

That said, the country isn't ready for gay marriage yet. It's not unreasonable that people are concerned that, if a particularly "open" state institutionalizes it, gay marriage will become the default norm because of the Full Faith and Credit Clause. It's also perfectly valid for people to not want difficult social changes forced on them by federal judges. My guess is that, inside twenty years, gay marriage will be a reality and we'll adjust to it.

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posted by Eve at 7:06 AM | link 0 comments

DOMANIA: WORDING

...On Tuesday night, President Bush moved perceptibly closer to supporting a federal marriage amendment. But he stopped short of endorsing the idea, and gave no clue about which version--if any--he would ultimately get behind.

...President Bush took a stand--the right one--on one matter hotly debated within the pro-marriage camp. He referred to the 1996 Defense of Marriage Act, and said correctly that it settled the federal definition of marriage as the union of man and woman. No matter what happens in state lawsuits about marriage, DOMA means that, for example, no two men (or two women) can claim "married, filing jointly" on their 1040. Bush then said that DOMA "declares that one state may not redefine marriage for other states." Here he referred to the interstate portability of, say, Massachusetts same-sex "marriage" under the Full Faith and Credit Clause of the Constitution. Then the president talked about "activist judges," and how to stop them.

What does all this portend? The president evidently takes it for granted that federal law already blocks courts from forcing Indiana to recognize Massachusetts same-sex "marriages." The president is thinking of a different problem, then, when talks about what the people might have to do soon. That problem can only be judicial redefinition of marriage, even when the effects are confined within one state's borders.

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posted by Eve at 7:04 AM | link 0 comments

DOMANIA: STATE OF THE UNION

...The move Bush makes here is to begin shifting the terms of the debate from outcome to process. Yes, he's still focusing too much on whether the law should recognize gay marriage, but at least he has begun to shift attention to the real question, which is "who decides"? The people's elected representatives or the imperial judiciary?

I don't have particularly strong views one way or the other on the issue of gay marriage as a legal institution. As long as the government isn't telling the Catholic Church (or any other church) that it has to recognize gay marriages as a religious matter, my libertarian instincts incline me to take a laissez faire attitude towards marriage as a legal institution. ...

I would like to see Bush turn the debate fully to the "who decides" question. Instead of talking about the sanctity of marriage (which heterosexuals like Britney Spears are doing a pretty good job of destroying without help), Bush should focus the debate on judicial activism. How to do this? Revise the FMA so as to leave the definition of marriage to the state legislatures, while not requiring other states (or the federal government) to accept another state's definition. Then let the chips fall where they may.

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posted by Eve at 6:59 AM | link 0 comments

DOMANIA: Virginia

A Virginia House panel unanimously passed a resolution Wednesday urging Congress to propose a constitutional amendment against
gay marriages.

The resolution, sponsored by Delegate Robert G. McDonnell, seeks an amendment defining marriage as a union between a man and a woman. It also would render civil unions between couples of the same sex invalid in
the United States.

McDonnell said the constitutional amendment is needed to stop gay rights activists from changing marriage laws through the courts. He said recent gay rights victories in the Supreme Court and the Massachusetts Supreme Court place Virginia's law banning gay marriages in jeopardy.

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posted by Eve at 6:56 AM | link 0 comments

DOMANIA: Georgia

A day after President Bush said the U.S. "must defend the sanctity of marriage," Republican leaders in the state Senate introduced a resolution Wednesday that would ban gay marriages in Georgia.

The resolution calls for a constitutional amendment that would define marriage only as a union between a man and a woman.
Current state law already does so. But saying they fear judges could redefine marriage without the consent of politicians, Senate Republicans said they want the state's constitution to carry the same language.
"For thousands of years, the institution of marriage has been between a man and a woman," said Senate Republican Leader Bill Stephens, of Canton, one of the resolution's sponsors. "It begins to tear at the foundations of our institutions if it's anything other than that."

If approved by the General Assembly, the proposed amendment would appear on ballots during November's General Election. Gay rights groups immediately decried the resolution, calling it an anti-gay attempt to pander to voters in an election year. "The purpose of amendments is to create protections for the citizens of Georgia, not to write discrimination into the constitution," said Allen Thornell, executive director of Georgia Equality, the state's largest gay and lesbian advocacy group. "Individual rights are not based upon
just what the majority at one point in time feels, but are based on principles higher than that."

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posted by Eve at 6:55 AM | link 0 comments

DOMANIA: Ohio

OH DOMA passes Senate

The Ohio Senate narrowly passed a far-reaching ban on same-sex marriages Wednesday, just one day after President Bush signaled he would fight to create a constitutional amendment to do the same.
The bill, which defines marriage as a union between a man and a woman, looks like it's on a fast track to becoming law. The House approved a similar bill last year, and Gov. Bob Taft has pledged to sign a gay marriage ban. First, the bill goes back to the House. State Rep. Bill Seitz, a Green Township Republican who sponsored the bill, said he was "elated" at the prospect of Ohio being the 38th state
to pass the Defense of Marriage Act. "It's gigantic step toward strengthening the traditional view of marriage," Seitz said.

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posted by Eve at 6:48 AM | link 0 comments

IS THIS ABOUT HOMOSEXUALITY? David Benkof

For me, the same-sex marriage debate is indeed about homosexuality, and about the government preferring opposite-sex partnering over same-sex, because that encourages the best environment for the raising of children, as society has learned over the centuries.

It is not, however, about gay and lesbian people, their individual self-worth, patriotism, or value as part of the polity. The SSM advocates who complain about the injustices the current situation foists on gay and lesbian people in areas like immigration or inheritance are looking in the wrong place for changes. If they think the immigration laws are unfair, advocate changes in immigration policy. If they think inheritance laws are unjust, propose legislation to remedy that injustice. But don't fiddle around with marriage.

By privileging the monogamous, heterosexual way of life over other ways of life through the institution of marriage, our country sends a loud message that children ought whenever possible to have both a mother and a father committed both to each other and to their children. To whatever extent that message causes real harms to gays and lesbians, we can remedy those consequences socially and legislatively. But the institution of marriage should remain.
posted by Eve at 2:41 AM | link 0 comments

IS THIS ABOUT HOMOSEXUALITY? David Barnes replies to Mark Barton

Mark Barton divides participants in the same sex marriage debate into three broad camps:
(i) "liberals," who see no problem with gay sex (at least between consenting adults not encumbered by commitments to other relationships),
(ii) "libertarians," who disapprove of gay sex but disapprove even more strongly of the government passing laws that require invading people's bedrooms to enforce,
(iii) "social conservatives," who'd like to see the government actively discouraging gay sex.

This strikes me as a bizarre classification, because SSM opponents and supporters can be grouped in (i) and (ii), and no one on this site is really arguing position (ii) or (iii).

There are obviously those who think that intimate homosexual relationships can be every bit as wonderful as intimate heterosexual relationships. However, from that belief it does not follow that we ought to allow same sex couples to marry, as there are a whole host of reasons why legalized same sex marriage might be bad which have little to do with "gay sex."

As such, the "liberal" position is not a position in the marriage debate. It is a side belief which may or may not affect one's actual stance. I'm sure that there are some "liberals" who oppose SSM, because I am one.

Regarding (iii), I can’t recall anyone writing on this site that he'd "like to see the government actively discouraging gay sex." While such people obviously exist, that position is not being argued here, or at least only rarely.

I also can't recall any arguments from explicit "libertarians" as described by Mr. Barton on MD.com, probably because, as with the "liberal" position, a firm stance on SSM does not follow strictly from the "libertarian" position, which he recognized in his own post, suggesting how a "libertarian" could oppose or support SSM depending on how he interpreted his libertarianism.

Hopefully, this provides more explanation why the SSM debate need not depend on beliefs about homosexuality. It depends on beliefs about what role, if any, the government has in helping the family.
posted by Eve at 2:40 AM | link 0 comments

IS THIS ABOUT HOMOSEXUALITY? Patrick Hart

[Patrick Hart is a student at Swarthmore College.]

When anti-SSM voices say, "Oh, it's not about you in particular--we just want marriage
clearly put in a special area in society and maybe the state will give benefits to other relationships, maybe it won't," that kind of argument still is about gay people precisely because it regards their relationships as "other," interchangeable with friendships, family ties, etc. Society gives certain benefits to loving heterosexual couples that desire them and what loving homosexual couples are saying is that their relationships are just as loving, just as good, and they want those benefits, too.

That is why the debate ultimately has to be at least in part about homosexuality. If you're opposed to SSM, are gay relationships and straight ones morally equivalent? If not, why? If so, there seems to be little justification for opposing SSM. I know someone will bring up the argument of children and their needs, but if you contend that children are better served by heterosexual parents, that in itself seems to be a statement that homosexual relationships are in some ways deficient when compared to heterosexual ones. Speaking for myself (I know other pro-SSM voices will disagree), I have no wish to diminish the special status of marriage in our society. I just want society to acknowledge that homosexuals can have that type of special relationship as well.
posted by Eve at 2:35 AM | link 0 comments

IS THIS ABOUT HOMOSEXUALITY? Mike Pignatello

I think the SOTU address should clarify a little why Andrew Sullivan feels the way he does. I can't blame him for feeling that there is much bigotry behind anti-SSM positions--not always, but many times. And the SOTU does little to comfort American gays and lesbians that their government is going to meet their needs:
"...Activist judges, however, have begun redefining marriage by court order, without regard for the will of the people and their elected representatives. On an issue of such great consequence, the people's voice must be heard. If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process."

A lawsuit brought by individuals against a state for recognition of a civil right can hardly be the "arbitrary will" of judges. That would be like saying the 1948 Perez case was arbitrary, when the California Supreme Court ruled--far ahead of its time--that the state ban on interracial marriage was unconstitutional. If it's not what most people want, it must be arbitrary! But the Goodridge decision is not arbitrary at all; it's based on constitutional law and the state appeals process.

The president even suggests resorting to the national "constitutional process" in order to "defend" marriage, presumably from gay people. It sounds like Bush is actually trying to create the situation under which a Constitutional amendment could be justified. We didn't do it, SSM opponents will say, it was the activist judges that made us do it. There is no recognition in the SOTU, of course, that the Massachusetts judges were interpreting the law according to their state constitution, as is their job. One can't help but wonder what lack of respect for the separation of powers is hiding in some of the SOTU comments.

Andrew Sullivan has it right: there is no official policy toward gay people. If there were an official policy, the president might promote an alternative to civil unions to help gay families, something that wouldn't infringe on the "sanctity" of marriage. Simply telling gay families "No" is not a policy. Preempting states from meeting the needs of gay people through civil marriage adds to the perception that there is no positive policy. Instead, there is a policy of denial.
posted by Eve at 2:30 AM | link 0 comments

IS THIS ABOUT HOMOSEXUALITY? David Barnes replies to Barry Deutsch

A discriminatory policy is not necessarily unjust. According to the Legal Information Institute, in discrimination matters the court "will 'strictly scrutinize' a distinction when it embodies a 'suspect classification.' In order for a classification to be subject to strict scrutiny, it must be shown that the state law or its administration is meant to discriminate." This suggests that it really does matter if legislators oppose SSM for the purpose of discrimination or if they oppose it for reasons of political philosophy.

To make a larger point, Eve is just trying to expand the current discussion, which tries to assume everyone is pro-gay and pro-SSM or anti-gay and anti-SSM. In fact, people can be pro-gay and anti-SSM as well as anti-gay and pro-SSM. Those last two positions cannot be dismissed as logical contradictions, even if you believe them to be implausible.
posted by Eve at 2:25 AM | link 0 comments

IS MARRIAGE A RIGHT? Mark Barton replies to Mark Tardiff

[Tardiff is in bold, Barton in plain text.]

Mark Tardiff: First, the parallel to free speech does not hold. Free speech is explicitly guaranteed by the Constitution; SSM is not. The only way to reach SSM is through interpretation.

Mark B.: Certainly arriving at SSM involved interpretation, but not about the issue of whether there was a violation of an explicit guarantee in the Massachusetts constitution. Matters couldn't be clearer: plaintiffs were denied marriage licenses because of their sex. The only question requiring some interpretation is the same as in a typical free speech case: whether there was some sufficiently weighty reason to justify the court allowing an exception from the plain reading. For example, the US Supreme Court has ruled that speech is not protected if the government can meet a "clear and present danger" test. In the same way, the Supreme
Judicial Court would have allowed the prima facie sex discrimination if the government had met a "strict judicial scrutiny" test. However in
fact it found that the government did not meet even the laxer "rational basis" test.

Mark Tardiff: As Eve and others have pointed out, this amendment was passed with the assurance to voters that it would NOT lead to SSM. So in this case, at least, it seems to me that the voters did not surrender their authority; they were defrauded of it.

Mark B.: It depends on what the exact form of the assurances was, which is not clear from the remarks and citations by Eve that I've been able to find, e.g., here. The text of the
amendment is straightforward. The voters could hardly fail to be aware that they were renouncing authority in fairly comprehensive terms and that exceptions would be at the discretion of the Supreme Judicial Court. So if the assurance was that the ERA would not necessarily lead to SSM, or in other words, that there was no slippery slope, then they were not misled. Indeed the Goodridge decision observes early on that the state needed to give a rationale for banning SSM that withstood a "strict judicial scrutiny" test. While this is a demanding standard, it's by no means impossible in principle to meet. And if gay and lesbian people had been as psychologically and socially dysfunctional as it was widely
assumed in 1976 that they were, it should have been easy to meet.

Mark Tardiff: Third, the justices' decision depends less on law than it does on philosophy. Specifically, they had to assume the radical feminists' intention that gender is a social construct, one that we can rearrange as we like. Apart from this unmentioned and unsupported philosophical assumption, the ruling makes no sense.

Mark B.: I see nowhere in the ruling where where they rely on any assumption about gender as a social construct. The key issue on which they adopt the philosophy of the pro-SSM side against the objections of the anti-SSM side is the question of whether (civil) marriage is primarily an institution to protect kids (which happens to involve two parents), or primarily a recognition of commitment between two people (that happens to be good for kids to some extent). And as they explain,
they come down on the pro-SSM side because the actual features of the marriage laws don't support the idea that the state was the slightest bit serious about the three rationales that it invokes.
posted by Eve at 2:20 AM | link 0 comments

IS MARRIAGE A RIGHT? Mary Catelli replies to Mark Barton

Mark is in bold, Mary in plain text.]

I find this a little strange.

I think it's great that Sarah is caring for her sister and I want to see her have whatever rights and legal conveniences that would make it easier for her. But does she seriously want the package called "marriage"?

I can just imagine the response if anyone offered that comment to a pair of homosexuals.

I'm sure bits of it would be helpful, but other bits seem quite inappropriate for her circumstances. While she's taking care of her sister, for example, she can't take a husband. If her sister recovers her faculties and they "divorce," then all sorts of provisions about community property and custody of children could be triggered to unhelpful effect.

There are homosexuals -- I have certainly read their interviews -- who do not want marriage. They don't think it appropriate for their circumstances. There are heterosexuals who think the same thing. Unless this is an argument for abolishing marriage altogether, we must either allow the individuals to decide on their own whether marriage is appropriate, or else distinguish between the natures of those relationships that can be sanctioned by marriage, and the natures of those that can't.
posted by Eve at 2:12 AM | link 0 comments

STATE OF THE UNION: REASON MAGAZINE

And give a raise to the nameless slickster who crafted the delightfully ambiguous phrase: "If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process." Supporters of the amendment will read it as: "Since they've done A, we have to do B," but you're left with significant wriggle room, since an alternative reading is "If they continue to do A, we might have to do B."

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posted by Eve at 7:24 PM | link 0 comments

APPEAL IN CIVIL-UNION WRONGFUL DEATH CASE: From 365Gay.com

In the first case in the nation that recognized a
couple who entered into a Vermont civil union as spouses outside that state, Lambda Legal today asked an appeals court to uphold an earlier ruling that a gay man in New York is a legal spouse and able to sue St. Vincent's Hospital for medical negligence leading to his longtime partner's death.

The hospital is appealing a lower court ruling last year that found John Langan could sue the hospital over the death of Neal Conrad
Spicehandler. ...

"My world was suddenly and completely shattered," Langan said. "Conrad was the love of my life." ...

When St. Vincent's was unable to satisfactorily explain how the routine surgery turned fatal, Langan and Spicehandler's mother, Ruth, sued St. Vincent's for wrongful death and medical malpractice. ...In his ruling last April, Nassau County Supreme Court Justice John P. Dunne noted that "common-law" spouses from other states are regularly recognized as spouses in New York and said, "[I]t is impossible to justify, under equal protection principles, withholding the same recognition from a union which meets all the requirements of a marriage in New York but for the sexual orientation of its partners."

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posted by Eve at 3:56 PM | link 0 comments

STATE OF THE UNION: LA Times, National Review Online

President Bush on Tuesday called on Americans to "defend the sanctity of marriage," and tiptoed toward suggesting a
constitutional amendment to block gay marriage but stopped just short of endorsing one.

Conservative groups, which form a key part of the president's political base, were pleased with the high-profile attention he gave the issue, but some said it was time for Bush to directly call on Congress to pass a constitutional amendment.

Instead, they heard murky, carefully parsed language. "On an issue of such great consequence, the people's voice must be
heard," Bush said. "If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the
constitutional process." ...

Bush accused "activist judges" of "redefining marriage by court order, without regard for the will of the people and their elected representatives."

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National Review writers comment:

Rod Dreher: I didn't get to hear the whole SOTU because I was at a rubber-chicken dinner, but I did catch the president's statement on gay marriage when I walked out to the bar. Why'd he bother? He said that if activist judges try to impose gay marriage, then we'll have to think about a constitutional amendment to stop them. Excuse me, but what does the president think has already happened in Massachusetts? Look, I know Mr. Bush doesn't want to deal with this issue. I understand that. But there's no middle ground here, and the longer he delays taking a hard stand on it, the less social conservatives will trust him to hold the line.

I'd love to know what the Corner thinks the likelihood of Bush ultimately coming out behind the Federal Marriage Amendment is. If I had to lay money on it, I'd bet he's not going to support the thing.

Kathryn Jean Lopez: Rod, I disagree. I was glad he said what he said as he said it. In recent days, there were some rumors he might come out and support a Federal Marriage Amendment. But considering that conservatives who are for an amendment aren't even together about what they want, I don't blame him for not endorsing anything. Plus, I like the message the courts vs. the people. (It's a situation we find ourselves in re other moral issues, of course.) He said this must be solved. Period. And that marriage is between a man and woman. Period. And that he'll support an amendment if it is the only alternative--which he probably thinks it is, shortly. Seems like the right message--I don’t want him being too enthused about adding to the Constitution. ...

John O'Sullivan: ...I agree with Madame K and disagree with Rod on the federal marriage amendment. It struck me as a qualified commitment but a strong one--and one furthermore that was rightly attached to a warning against cheap anti-gay sneers. I think the tone of it will have gone down well with Middle America which is important. If opposition to gay marriage morphs into general hostility to gays, it will lose. Bush took steps to avert that and perhaps to nullify any crudities that do get expressed. As to the future, if the courts go further in imposing radical change, the President will either have to redeem his pledge or lose significant support from traditionalists for his betrayal. As the election approaches, that will concentrate his mind wonderfully.

Incidentally, he might want to consider making a more general case against judicial imperialism--his rhetorical attack on it tonight went down well. ...
posted by Eve at 3:51 PM | link 0 comments

RELIGIOUS VIEWS HAVE A PLACE IN SSM DEBATE: David Benkof in the San Francisco Chronicle

[Eve notes that this is a longer version of a post made here.]

Ever since the Massachusetts Supreme Court narrowly held that the state must grant marriages to same-sex couples, defenders of the Goodridge vs. Massachusetts decision have argued that its impact is limited to civic marriage, and thus religious defenders of the traditional definition of marriage have nothing to fear and should get out of the way.
This reasoning is not only flawed, it insults the millions of Americans whose traditional faiths call on us to defend marriage as a central
institution in society defined as a union between a man and a woman.

The idea that people's religious beliefs should not influence their stances on our nation's legal institutions goes against American tradition. For example, many outspoken advocates for the abolition of slavery were members of Protestant churches. A century later, the Quakers played a key role in coordinating conscientious objection to the Vietnam War. And Martin Luther King boldly quoted the Book of Isaiah in his "I Have a
Dream" speech, calling on our leaders to live up to the highest expression of our founders' beliefs.

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posted by Eve at 3:42 PM | link 0 comments

MASS. BISHOPS PUSH FOR MARRIAGE AMENDMENT: From the Boston Globe

The four Roman Catholic bishops of Massachusetts, in what they described as an unprecedented effort to mobilize the state's 3 million Catholics, yesterday said they will distribute mailings to 1 million households urging laypeople to speak out in favor of a state constitutional amendment defining marriage as a union between one man and one woman. ...

In the mailer being sent to Catholics, each of the four bishops describes why he opposes gay marriage, and the document includes a guide to contacting lawmakers as well as an explanation of church teaching on gay marriage published by the US Conference of Catholic Bishops. The document urges Catholics to visit, call, or write lawmakers before a scheduled Feb. 11 constitutional convention. ...

In a joint statement, they said people who oppose same-sex marriage are being intimidated. "People may be hesitant to act for fear of being falsely labeled as bigots or intolerant," Dupre said. The bishops are also
sending packets of information to priests in an effort to enlist their assistance in persuading parishioners to advocate for the constitutional amendment. The packet sent to Boston-area priests includes copies of recent church documents about gay marriage and suggested prayers that can be added at Mass.

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posted by Eve at 3:37 PM | link 0 comments

IS THIS ABOUT HOMOSEXUALITY? Matt Taylor

I don't agree with Andrew Sullivan that all arguments against SSM are motivated by bigotry. However, he is right about one thing: while lots of people are talking about homosexuals in the SSM debate, not many are talking to them. Many oppose SSM for the message it sends to heterosexuals, but what message should we send to everyone else? What kind of relationship(s) and family structure should a gay person form in order to make the most positive contribution to society, and what policy best reinforces that message?
posted by Eve at 4:29 PM | link 0 comments

IS THIS ABOUT HOMOSEXUALITY? Mark Barton

[Questions from the initial post in bold, Mark's replies in plain text.]

"So: What's the deal? Is it possible to support SSM and disapprove of homosexual acts, or vice versa?"

It's probably possible but it's a bit of a stretch. There are three main camps in this debate:

(i) "liberals," who see no problem with gay sex (at least between consenting adults not encumbered by commitments to other relationships),

(ii) "libertarians," who disapprove of gay sex but disapprove even more strongly of the government passing laws that require invading people's bedrooms to enforce,

(iii) "social conservatives," who'd like to see the government actively discouraging gay sex.

The reason that public opinion on SSM is lagging so far behind that on other gay rights issues is that most libertarians make an
active/passive distinction: they're not unhappy for the government to passively condone
gay sex by not passing laws against it, but they draw the line at any active recognition or endorsement of it, such as, arguably, SSM.
Conceivably a sufficiently gung-ho "libertarian" might go further and make the "liberal" argument that, some form of marriage having been established, it's the withholding of SSM that's the active course needing extra justification, and end up deciding to weigh the equal protection argument more heavily than their personal disapproval. However, as far
as I know I've never encountered such a position.

The "vice versa" is of course the position that Eve in her role as advocate is trying to put. I just don't agree that Eve's efforts have been
successful or are likely to be, given real-world practicalities.

"Is Sullivan right about the bottom line of the debate, or am I right?"

I think Sullivan is certainly right when he says, "...gay and lesbian citizens are regarded as beneath responsibility. There is no need for a social policy toward them, since they have no human needs or aspirations." He was talking about the Bush administration, but it's the
sense I get from conservative religious people generally and Eve in particular, even when she's trying her hardest to make a non-sectarian case. For example, she says, "Yet there is some evidence that the SSM debate is not--or need not be--about homosexuality and gay relationships." If she'd said the opening statement in a case against SSM need not be about homosexuality (same-sex attraction), I'd agree. An opening statement against SSM could theoretically dwell on some supposed
adverse consequence of the mere fact of two guys in a "marriage."

But how can the debate as a whole possibly not be about gay relationships when it is the entire opening statement of the pro-SSM
side that because committed gay relationships are highly analogous to traditional marriages, in large part precisely because of the gay
(same-sex attraction) aspect of the relationship, they ought to be legally formalizable as marriages?

After all, this isn't arbitrary pursuit of legal symmetry for its own sake. This is about the fact that the needs and aspirations of gay
couples are so analogous with those of straight couples that they are well-served by the same package of rights and responsibilities. Committed gay relationships are very much more like marriages than any other relationship, socially approved or not. They naturally express themselves in physical intimacy, cohabitation, financial entanglement, etc, etc, just like marriages. They throw up pretty much exactly the same set of legal issues as marriages. They are just as central to the lives of the people in them as marriages.

Now if Eve wanted to argue that that needs and aspirations of gay and lesbian people had to take a back seat to the needs of say children, then I could at least agree to disagree. But I don't get the impression that
the needs and aspirations of gay and lesbian people are on her radar at all.

"If this is a debate about homosexuality, what are the crucial questions that need to be addressed?"

The one and only crucial question is how much weight do you give the fact that gay marriage would admirably serve the needs and aspirations of gay couples.
posted by Eve at 4:28 PM | link 0 comments

IS THIS ABOUT HOMOSEXUALITY?: Barry Deutsch

...At the most literal level, of course, SSM is about same-sex relationships. I mean, duh. You might as well ask if a traffic light ordinance has anything to do with traffic.

But of course, Eve isn't talking about the most literal level. Rather, she's asking whether or not opposition to gay marriage is necessarily motivated by anti-gay bigotry.

My answer is, who cares? I think a marriage law that discriminates on the basis of sex (or sexual preference) is bigotry; whether or not the people who support such a law have bigotry in their hearts is irrelevant. I'm against bigotry in people's policies; I don't care what's in their hearts.

By asking this question, Eve is encouraging ad hominem debate. Isn't that something we'd be better off trying to avoid?

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[Eve replies briefly: Well, I've gotten quite a few emails (to be posted momentarily) that aren't ad hominem at all. Which is what I was hoping for--that MD readers could address what is probably the hottest of the hot-button aspects of SSM without hissing and scratching at one another. So far, y'all are coming through for me. So I disagree that I'm asking for ad hominem.]
posted by Eve at 4:14 PM | link 0 comments

IS MARRIAGE A RIGHT? Mark Barton replies to Sarah Bates

I think it's great that Sarah is caring for her sister and I want to see her have whatever rights and legal conveniences that would make it easier for her. But does she seriously want the package called "marriage"? I'm sure bits of it would be helpful, but other bits seem quite
inappropriate for her circumstances. While she's taking care of her sister, for example, she can't take a husband. If her sister recovers her faculties and they "divorce", then all sorts of provisions about community property and custody of children could be triggered to unhelpful effect.

Now I agree with Eve that there should be a variety of special-purpose legal partnerships for different circumstances, including Sarah's. I
disagree that we should create a new type of legal partnership for committed gay relationships, because it's a wilful waste of effort to avoid acknowledging that it's an already solved problem: with vanishingly
rare exceptions, existing marriage law is perfectly appropriate. Moreover, quite apart from the symbolic value, I don't want a new,
cobbled-together arrangement because marriage law has been thoroughly debugged. I don't want to find, for example, that my domestic partnership dissolves if I have to work in another city for a period because it depends on having the same residence. I don't want to find in an emergency that, oops, they forgot to include a provision for quick domestic violence restraining orders.
posted by Eve at 3:31 PM | link 0 comments

NEW LEGAL GROUP TO OFFER GAY MARRIAGE ADVICE: From 365Gay.com

Lambda Legal has set up a new program to help same-sex couples sort through the legal quagmire of gay marriage. It is aimed at
assisting couples who are considering whether to get married and are deciding where to do it, in Canada or Massachusetts. ...

Lambda Legal's lawyers have prepared a new publication[.] "Decisions...Decisions: Deciding Whether to Get Married In Canada or Massachusetts," poses questions to couples to help them decide, if they want to marry, which option might be best for them. It also provides a list of pros and cons related to obtaining licenses in Canada or Massachusetts. ...

...The publication can be ordered through the Lambda Legal website. ...

Along with today's guidelines comparing Canada and Massachusetts, Lambda Legal released "We Got Married in Canada, What's Next? An Action Guide for Newlyweds," which provides practical tips for same-sex couples
who want to get their marriages respected in their workplaces and communities.

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posted by Eve at 3:14 PM | link 0 comments

IS MARRIAGE A RIGHT? Mark Tardiff replies to Mark Barton

Mark Barton, apparently to correct my strong emphasis on representative democracy,
insists that the US Constitution is "leavened with anti-democratic principles to prevent tyrannies of the majority." A few comments:

First, the parallel to free speech does not hold. Free speech is explicitly guaranteed by the Constitution; SSM is not. The only way to reach SSM is through interpretation.

Second, while I do not have a copy of the Massachusetts constitution with me, I believe that the phrase quoted is from an amendment to the Massachusetts constitution. As Eve and others have pointed out, this amendment was passed with the assurance to voters that it would NOT lead to SSM. So in this case, at least, it seems to me that the voters did not surrender their authority; they were defrauded
of it.

Third, the justices' decision depends less on law than it does on philosophy. Specifically, they had to assume the radical feminists' intention that gender is a social construct, one that we can rearrange as we like. Apart from this unmentioned and unsupported philosophical assumption, the ruling makes no sense.

Now I contend that basic philosophical assumptions, basic worldviews that give our words specific meanings, are NOT the province of judges to determine. The PEOPLE should decide such things. Otherwise representative democracy collapses completely and we have what can only be called judicial oligarchy.
posted by Eve at 3:09 PM | link 0 comments

MARRIAGE AND EQUAL PROTECTION: Matt Taylor replies to Jim Henley

I disagree that marriage is not an issue of individual rights. Jim's argument assumes that the US constitution is the ultimate authority on rights, but historically that document has not recognized all the rights that are generally accepted today. For example, the right of women and non-whites to vote were only recognized in later amendments. ...

Personally, I believe that marriage should not be considered something people are given by the government, but rather something they decide to do as individual couples. Banning same-sex marriage restricts the freedom of gay people to enter marriage contracts, and therefore violates their fundamental rights.

Take this analogy: if states refused to recognize changes of residence for non-white persons, it would violate both equal protection and individual rights. Equal protection is violated because the benefits of residency (voting, social services, etc.) are denied to a class of people, but individual rights are also violated because freedom to move from state to state is restricted.

The very thought of a government-issued "interstate relocation license" strikes me as an obvious violation of rights, even if it were issued without any discrimination against particular classes of people. That we don't view a state-issued "marriage license" the same way is just a historical accident.

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posted by Eve at 2:59 PM | link 0 comments

DO GAY COUPLES HAVE AN EDGE? From Time magazine

[Eve notes: The title of this piece is really out of line with the content. A gay "edge" is the subject of about two-thirds of a paragraph, while most of the article discusses difficulties faced by same-sex couples. Good job, Time editors.]

...But Monti and Neill are both women, and while gay and heterosexual couples have plenty of issues in common, there are big differences as well. Gay couples have to cope daily with homophobia, says Robert-Jay Green, a psychologist in San Francisco. An even bigger problem is a lack of clarity about commitment. "In research samples, the average length of same-sex-couple relationships tends to be about six years," says Green, "compared to around 18 for heterosexuals."

One reason is that there is usually less social glue--marriage, family expectations, children--holding gay couples together. "There's really no one rooting for them to stick it out through the tough times the way there is for straight couples," says Green. "There's no ceremony that invokes traditions of what it means to be a couple. It produces tremendous insecurity."

That is beginning to change as commitment ceremonies become common and families become more accepting (Monti's four children adore Neill). In some ways, gay couples have an advantage, says John Gottman, who counsels both straight and gay couples at his institute in Seattle. Because there is no gender divide between them, "gay partners discuss problems more positively, with more humor and affection than heterosexuals."

Sometimes, however, having similar perspectives can be more of a curse than a blessing, says psychologist Michael Hendricks, who practices at the Washington Psychological Center in Washington: "Expectations about compatibility can be too high."

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posted by Eve at 2:56 PM | link 0 comments

MORE GAYS AND LESBIANS THAN EVER BECOMING PARENTS: From the Orlando Sentinel

...The Bartons are part of the "gayby boom," an explosion in the number of gays and lesbians who, at peace with themselves and their place in society, are choosing parenthood through adoption or reproductive technology.

"There was a sizable boom in the 1990s, but today it's a groundswell," said April Martin, author of The Lesbian and Gay Parenting Handbook. "There is a seismic shift in the number of gays and lesbians who feel parenting is a real option."

No one knows how many gays are parents, but nearly 168,000 same-sex couples throughout the nation reported children at home during the 2000 census. That's more than a ninefold increase over the 1990 census. In Florida, where nearly 10,000 same-sex couples reported children at home in 2000, the numbers could escalate if a federal court strikes down the state law forbidding gays from adopting children. A ruling is expected soon. ...

Accepted by their families and friends, Woolley, 30, a teacher, and Larrea, 43, a juvenile-court administrator, entered adulthood comfortable with their sexuality. When they met six years ago, they fell in love and settled down, buying a house and pledging to build a life together. Their triplets, born last year with an anonymous donor's sperm, made their family whole. ...

Gays still have children in marriage, but more are starting families of their own, with partners or as single parents. Like the Bartons, who are raising an Ohio relative's twins, many adopt. Even in Florida, they find ways around the state ban, either by going out of state, overseas or, in some cases, lying.

But untold numbers are following the Woolley-Larrea path and bearing children with the same reproductive medical technology that infertile straight couples use: sperm or egg donation, in vitro fertilization and surrogacy.

As a result, same-sex couples are creating some interesting family trees, refocusing the fight for gay rights and redefining the concept of family in much the way divorce, stepparents and half-siblings have.

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posted by Eve at 2:52 PM | link 0 comments